Ideally States would always agree on questions of nationality determination. However, in
practice the finding of a State whose nationality is at issue may not always coincide with the
findings of other States. For example, if State A declares that a person does not have its
nationality this should normally be accepted by other States, in accordance with the principle
that each State is competent to determine who are its nationals. However, where other States
consider there are substantial reasons to doubt or challenge such a declaration, they need not
necessarily take it at face value and could instead determine that the person concerned does in
fact have the nationality of State A.164
For example, State B may find it credible that a particular individual was born in a State A
that grants nationality jure soli, even though this is yet to be demonstrated to the standard
required by the laws of evidence of State A. State B may accordingly make a finding that the
person concerned is a national of State A, even though State A has not made such a finding
itself. 165 State B’s finding will not normally be binding on State A or on other States, but
may well have legal consequences in State B, for example regarding whether or not State B
should treat the person concerned as stateless. Hence, it is submitted that:
164
165
See UNHCR references in footnote 158 above. See also Weis, op. cit., footnote 80 above, pp. 1085 – 1086:
“The operation of most of the provisions of the [1961] Convention depends on the condition that the person
concerned ‘would otherwise be stateless’ or be rendered stateless. The interpretation of these provisions
will be a matter for the Contracting States. It will, therefore, be necessary for them to ascertain whether the
person does or does not possess the nationality of one or more other States. Each State is, however,
competent to determine who are its own nationals, and the findings of the Contracting State concerned on
the nationality of the person will not necessarily coincide with the findings of the State or States whose
nationality is at issue. In the absence of authoritative determination by that State or States, it is, as practical
experience has shown, often very difficult to establish, beyond doubt, a person’s nationality or, for that
matter, his lack of nationality, his statelessness.”
The converse might also exceptionally occur, where State A claims that an individual has its nationality but
State B refutes this. See Jennings and Watts (eds), “Oppenheim’s International Law”, 9th edition, 1992,
Volume 1, Parts 2 to 4, pp. 854 - 855:
“[N]otwithstanding the general principle that it is for each state to determine who are its nationals, a
state’s assertion that in accordance with its laws a person possesses its nationality is not conclusive
evidence of that fact for international purposes. An international tribunal called upon to apply rules of
international law based upon the concept of nationality has the power to investigate the state’s claim that
a person has its nationality. However, this power of investigation is one which is only to be exercised if
the doubts cast on the alleged nationality are not only not manifestly groundless but are also of such
gravity as to cause serious doubts with regard to the truth and reality of that nationality.
Furthermore, it is not only international tribunals which may question the grant of nationality by a state
to an individual. Even the national courts of other states may, although usually reluctant to do so, in
certain circumstances feel it right to inquire into the justification and lawfulness of a state’s grant of its
nationality. This is likely particularly to be the case where the grant of nationality is to be questioned
because of alleged non-conformity with international law.
Despite such limitations on the international effects of nationality granted by a state to an individual, a
state’s own determination that an individual possesses its nationality is not lightly to be questioned. It
creates a very strong presumption both that the individual possesses that state’s nationality as a matter of
its internal law and that that nationality is to be acknowledged for international purposes …”
48